REPUBLIC OF KENYA

IN THE SUPREME COURT OF KENYA

(Coram: Maraga CJ & P, Ibrahim, Wanjala, Njoki & Lenaola, SCJJ)

Civil Application 17 of 2020

BETWEEN

JOHN MINING TEMOI................................................................................1ST APPLICANT

JOB ARNOLD CHEPKWESI......................................................................2ND APPLICANT

AND

GOVERNOR, BUNGOMA COUNTY.......................................................1ST RESPONDENT

HON. ATTORNEY GENERAL................................................................2ND RESPONDENT

SPEAKER, COUNTY ASSEMBLY OF BUNGOMA............................3RD RESPONDENT

COUNTY PUBLIC SERVICE BOARD..................................................4TH RESPONDENT

_______________________________________________________

(Being an application for extension of time to file an appeal out of time from the Judgment and Decree of the Court of Appeal

at Kisumu (Githinji, Okwengu & Mohammed, JJA) dated 30th December 2019 in Civil Appeal No. 12 of 2015)

____________________________________________________________

RULING OF THE COURT

1. UPON perusing the Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020, which application is brought pursuant to the provisions of Section 3(d) & (e) of the Supreme Court Act, 2011, Rules 3(5), 15(2) and 38(1) of the Supreme Court Rules, 2020 in which the Applicants seek extension of time to file an appeal out time; and

2. UPON perusing the supporting affidavit of the 2nd Applicant sworn on 13th July 2020; and

3. UPON considering the written submissions by the Applicants dated 13th July 202o and filed on 14th July 2020 wherein the Applicants contend that the delay in filing an appeal to this Court was inadvertent, and was caused by the adverse effects posed by the Covid 19 pandemic, as well as the inability to timeously obtain legal counsel for representation on a pro bono basis and certified copies of types proceedings from the Court of Appeal; and

The 1st Respondent’s submissions dated 14th August 2020 wherein it is contended that the application was without merit, that the delay is inexcusably inordinate, and that the right of extension is not a right that the Applicants deserve, in the instance; and

4. HAVING considered the application and the submissions filed by the Applicants and the 1st Respondent, by a unanimous decision of this Bench, we find that;

(a) This Court has the jurisdiction to consider and allow an application for leave to extend time – see Anuar Loitiptip v. Independent Electoral & Boundaries Commission SC Petition (App.) No. 18 of 2018; [2018] eKLR as well as Section 21(3) of the Supreme Court Act and Rule 53 of the Supreme Court Rules, 2012;

(b) That an applicant seeking extension of time must satisfy the principles set out in Hamida Yaroi Shek Nuri v. Faith Tumaini Kombe & 2 others SC Petition (App.) No. 38 of 2018; [2019] eKLR, Nicholas Kiptoo Arap Korir Salat v. Independent Electoral & Boundaries Commission & 7 others SC (App) No. 16 of 2014; (2014) eKLR among other authorities on extension of time;

(c) We thus find that the Applicants have no reasonable or cogent explanation and did not adduce sufficient reasons for the delay in filing the intended appeal as failure to obtain legal representation is not a sufficient ground for this Court to exercise its discretion in an application for leave to file an appeal out of time where no evidence is tendered in that regard. And whereas the covid pandemic initially affected the ability of parties to access this Court, there is no evidence in the present case that the Applicants were unable to access this Court or the Court of Appeal in good time to file their appeal.

(d) Furthermore, the Applicants have not annexed to their application their intended Petition of Appeal or the grounds of appeal which they wish the Court to consider in their intended Petition of Appeal and to allow the proceedings before this Court to commence in accordance with Rules 38(2)(a) and 39(2) of the Supreme Court Rules, 2020 and as determined in Yusuf Gitau Abdallah v. Building Centre (K) Ltd Petition No. 27 of 2014; [2014] eKLR;

(e) The Applicants have also not explicitly stated what constitutional provisions they intend to rely upon in bringing the intended Appeal before this Court as was pronounced in Suleiman Mwamlole Warrakah & 2 others v Mwamlole Tchappu Mbwana & 4 others Petition No. 12 of 2018; [2018] eKLR.

5. In the circumstances, we now make ORDERS as follows;

(a) The Notice of Motion application by the Applicants dated 13th July 2020 and filed on 14th July 2020 is hereby dismissed;

(b) Each party shall bear its costs.

6. Orders accordingly.

DATED and DELIVERED at NAIROBI this 23rd day of September 2020

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D.K. MARAGA                                                                            M. K. IBRAHIM

CHIEF JUSTICE &                                                                     JUSTICE OF THE SUPREME COURT

PRESIDENT OF THE SUPREME COURT

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S. C. WANJALA                                                                           NJOKI NDUNGU

JUSTICE OF THE SUPREME COURT                                   JUSTICE OF THE SUPREME COURT

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